Constitutional complaint concerning the “NSU trial” unsuccessful

Press Release No. 82/2022 of 24 October 2022

Order of 30 September 2022
2 BvR 2222/21

In an order published today, the Second Chamber of the Second Senate did not admit for decision a constitutional complaint challenging a sentence imposed by the Higher Regional Court of Munich on 11 July 2018 and two orders of the Federal Court of Justice issued on 12 August 2021 and 22 September 2021, respectively. The complainant has failed to substantiate or provide any indication of a violation of the right to be heard, a violation of the general guarantee of the right to equality in its manifestation as the prohibition of arbitrary measures, or a violation of the fundamental procedural right to one’s lawful judge.

Facts of the case:

Following a conviction for her role as a joint offender in various crimes, including several murders committed by a far right terrorist association and her membership in said association, the Higher Regional Court sentenced the complainant to life imprisonment, citing the particularly aggravated guilt in her case. The complainant brought an appeal on points of law against the judgment, challenging in particular the findings regarding her involvement in the offences. The Third Criminal Division of the Federal Court of Justice rejected the appeal on points of law in an order pursuant to § 349(2) of the Code of Criminal Procedure (Strafprozessordnung – StPO). The complainant’s subsequent complaint seeking remedy for a violation of the right to be heard (Anhörungsrüge) was also rejected.

In constitutional complaint proceedings, the complainant asserted a violation of her right to be heard, an arbitrary application of § 349(2) StPO and a violation of her procedural right to decision from a lawful judge. Specifically, the complainant contended that the Federal Court of Justice’s decision to reject her appeal by issuing an order rather than through a judgment following an oral hearing amounted to a violation of her constitutionally guaranteed rights.

Key considerations of the Chamber:

I. The Chamber did not admit the constitutional complaint for decision, as the prerequisites for admission pursuant to § 93a(2) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) have not been met.

1. The complainant has failed to demonstrate any violation of her procedural fundamental rights under Art. 103(1) of the Basic Law (Grundgesetz – GG).

a) Art. 103(1) GG guarantees the right of parties in court proceedings to present their arguments as to the underlying facts of the case prior to a decision on the matter being rendered. However, the right to an oral hearing does not follow directly from Art. 103(1). Rather, it is for the legislator to determine how the procedural framework protecting the right to be heard is to be set out in the law. Thus, the possibility that an appeal on points of law in criminal proceedings may be rejected by an order under § 349(2) StPO – i.e. without an oral hearing on the matter – is not objectionable under constitutional law. In criminal appeals on points of law, the legislator has provided appellants the opportunity to present their arguments both in their grounds for appeal on points of law and in response to the submission of the Federal Public Prosecutor General. This is sufficient protection of the right to be heard.

These standards are in accordance with the European Convention on Human Rights (ECHR), which serves as a guideline for interpretation when determining the content and scope of fundamental rights. While the case-law of the European Court of Human Rights provides that Art. 6(1) ECHR requires, in principle, that oral hearings be held, this principle does not unconditionally apply to appellate proceedings. When a public hearing has been held in the court of first instance, the lack of an oral hearing in subsequent appellate proceedings may be justified depending on the nature of the proceedings in question. In the case of an appeal only on points of law, an oral hearing may be dispensed with when sufficient procedural rights exist.

b) In considering the standards set forth above, there is no substantiation or indication of a violation of the right to be heard.

aa) The complainant did not sufficiently substantiate a violation of the right to be heard. Beyond the fact that she provided no more than a piecemeal description of what additional information she might have presented in an oral hearing and what consequences this might have had for the challenged decisions, she failed to address the fact that she had already made extensive written submissions in the appellate proceedings as to why she did not believe that she qualified as a joint offender. Yet this fact should have been addressed given that the Third Criminal Division, in its decision on the complaint seeking remedy for a violation of the right to be heard, affirmed that it had taken all of the complainant’s appellate submissions regarding her classification as a joint offender into consideration and had found them unpersuasive. In a constitutional complaint asserting a violation of Art. 103(1) GG, the requirement of substantiation is only met when the submissions provide an indication of what information the complainant would have presented if they had been given a fair hearing. When a complainant asserts a violation based upon the lack of an oral hearing in appellate proceedings, they must demonstrate that their right to be heard could only have been adequately exercised through an oral hearing and that they were unable to make their grounds for appeal on points of law sufficiently clear in writing.

bb) The complaint likewise fails to provide any indication a violation of the right to be heard. The complainant’s arguments are based on the premise that the Federal Court of Justice has – in her view – deviated unexpectedly from its established case-law on joint offenders. This premise is false. The Federal Court of Justice’s order of 12 August 2021 is consistent with past decisions on the delimitation between mere affiliation and culpability as a joint offender.

The Third Criminal Division made clear that it had not departed from its past decisions on association-related offences, according to which culpability for such offences cannot be established by mere membership in the association. It also made clear – with reference to its established case-law – that it had based its assumption that the complainant qualified as a joint offender on findings made by the Higher Regional Court regarding the complainant’s objective involvement in the crimes and her interest in the crimes. These findings were, in the Third Criminal Division’s opinion, free of legal error under appellate law. In the context of assessing the objective questions raised under § 25(2) of the Criminal Code (Strafgesetzbuch), it seems plausible to assume that the complainant had considerable influence on the planning of the crimes, on the collective decision to commit the crimes and on the other two accomplices involved. It is not therefore objectionable under constitutional law to conclude that the complainant’s efforts in maintaining the group’s false identity played a decisive role in enabling the crimes to be committed. It is also constitutionally unobjectionable for the Federal Court of Justice to have found that, under the circumstances, it was irrelevant that the complainant was not directly involved in actually committing the crimes at the execution stage, given that her meaningful and influential activities in maintaining the group’s façade and, when the time came, of sending out the video claiming responsibility for the terrorist attacks are what enabled the other members of the group to carry out the serial crimes in the first place. The fact that, under ordinary law, it would have also been possible for the nature of her supporting activities to be categorised differently does not establish sufficient grounds for a violation of the right to be heard. Mere criticism of the challenged decision does not establish that it was beyond the reasonable expectation of the complainant that her actions might be classified as establishing joint culpability, given the range of legal views on the issue.

2. A violation of the prohibition of arbitrariness under Art. 3(1) GG through the application of § 349(2) StPO has also not been established.

a) A court may reject an appeal on points of law under § 349(2) StPO when the appeal does not cite or raise any new arguments as to those points of law that have already been sufficiently clarified by the case-law of the highest courts and a hearing to safeguard constitutional guarantees is not required. The order denying the complainant’s appeal is consistent with this standing practice. The Third Criminal Division based its decision on the findings made by the Higher Regional Court, which it regarded as being free of legal error, and applied its established case-law on the delimitation between affiliation and culpability to these findings. In a constitutionally unobjectionable manner, it set forth the reasons why it found the complainant to be culpable as a joint offender under this case-law. In doing so, the Third Criminal Division did not ignore the arguments of the complainant and explained in both of its orders – on a constitutionally sound basis – why the decisions cited by the complainant would not result in a different outcome. There is no indication that the conclusion of the Third Criminal Division that the complainant’s appeal on points of law was “manifestly unfounded” within the meaning of  § 349(2) StPO was incomprehensible under a reasonable appraisal of the ideas governing the Basic Law or that it could only be concluded that the decision was made on extraneous considerations.

b) The complainant’s submission also fails to demonstrate an arbitrary application of § 349(2) StPO. The submission ultimately relies on an idiosyncratic interpretation of this provision whereby unanimity among the members of the Division is insufficient on its own to guarantee the independent nature of a finding of manifest unfoundedness. But the complainant fails to demonstrate how the concept of a manifestly unfounded appeal on points of law as set out in the established case-law of the Federal Court of Justice is no longer comprehensible or that constitutional law requires – as a matter of fairness – that her interpretation of the law must be followed.

3. The complainant was not denied a lawful judge within the meaning of Art. 101(1) second sentence GG.

a) To the extent that the complainant objects to the failure to refer the case to the Court of Justice of the European Union, she has not successfully demonstrated that the lack of a referral constitutes a constitutional violation according to the standards of the Federal Constitutional Court. No constitutional concerns are raised when the Federal Court of Justice, in its challenged order denying the complaint seeking remedy for a violation of the right to be heard, understandably points out that it is unclear how an interpretation of the concept of “criminal association” by the Court of Justice of the European Union – as sought by the complainant – would contribute to the assessment of the strength of her interest in the crimes.

b) The assertion that the Federal Court of Justice did not respect the appropriate distribution of tasks between an appellate court and a court of first instance is also without merit. Art. 101(1) second sentence GG can be violated when an appellate court, which is bound by the factual findings of the court of first instance, fails to remand the proceedings when appropriate. However, there is no indication that the Federal Court of Justice made its own findings of fact in the challenged order of 12 August 2021.

II. The remainder of the constitutional complaint is also not admitted for decision.

1. In formal terms, the constitutional complaint also challenges the sentence imposed by the Higher Regional Court. However, the complainant’s substantive submissions only discuss the two orders of the Federal Court of Justice. They do not plausibly substantiate any violation of fundamental rights or rights that are equivalent to fundamental rights.

2. Insofar as the complainant also challenges the order rejecting her complaint seeking remedy for a violation of the right to be heard, the constitutional complaint is also not admitted for decision. As the challenged order did not violate the complainant’s right to be heard, it too raises no constitutional concerns.